J  K 


UC-NRLF 


SB 


23M 


OUR  NATIONAL  CONSTITUTION 
AS  RELATED  TO  NATIONAL  GROWTH 


A  CONSIDERATION  OF 
CERTAIN  ASPECTS  OF  THE 
WAR  WITH  SPAIN 


GEORGE  WHARTON  PEPPER 


UNIVERSITY  OF   PENNSYLVANIA 
IPbt  Beta  IRappa  Society 


OUR  NATIONAL  CONSTITUTION  AS 
RELATED  TO  NATIONAL  GROWTH 

A  CONSIDERATION  OF  CERTAIN  ASPECTS 
OF  THE  WAR  WITH  SPAIN 


BY 


GEORGE    WHARTON     PEPPER 

Algernon  Sydney  Biddle  Professor  of  Law 

in  the 
University  of  Pennsylvania 


THE  ANNUAL  ADDRESS 
9 
DELIVERED    JUNE    7,    1898,    BEFORE 

DELTA  CHAPTER  OF  PENNSYLVANIA 


Press  of 

George  H  Buchanan  &  Company 
Philadelphia 


Our  National   Constitution 
As   Related   to  National   Growth 

Centuries  are  arbitrary  divisions  in  the  stream  of  time, 
but  by  a  coincidence  it  often  happens  that  great  national 
changes  occur  a  century  apart.  As  we  take  our  stand  in  the 
closing  days  of  the  nineteenth  century  and  look  backward,  we 
observe  that  a  hundred  years  ago  the  forces  were  at  work  in 
England  which  brought  about  the  extinction  of  personal  gov- 
ernment and  the  enactment  of  such  epoch-making  measures 
as  the  Reform  Bill.  If  we  look  back  another  hundred  years 
in  the  history  of  the  mother  country,  we  may  note  the  inter- 
esting succession  of  events  which,  following  in  the  train  of 
the  Revolution  of  1688,  culminated  in  the  accession  of  George 
I.  and  the  entrance  of  England  upon  the  stage  of  European 
politics.  "From  the  age  of  the  Plantagenets  to  the  age  of 
the  Revolution  the  country  had  stood  apart  from  more  than 
passing  contact  with  the  fortunes  of  the  Continent."  Thence- 
forth, however,  England  was  destined  to  play  an  important 
part,  and  ultimately  a  dominating  part,  in  the  drama  of  Conti- 
nental politics.  For  the  first  time  she  was  to  exercise  an  intel- 
lectual and  moral  influence  upon  the  European  world.  The 
world  heard  of  Shakespeare  and  learned  that  there  was  an 
English  literature.  The  study  of  English  institutions  became 
an  inspiration  to  Montesquieu.  English  science  and  English 
philosophy  furnished  a  starting  point  for  Buffon  and  Rousseau. 

In  our  own  country  the  dawn  of  the  century  saw  our 
national  Constitution  in  operation  after  only  a  decade  of  trial. 
The  policy  of  the  infant  nation,  like  the  policy  of  her  mother 
before  her,  was  at  first  a  policy  of  isolation  from  the  distant 
world.  The  ears  of  the  people  were  still  echoing  with  Wash- 
ington's solemn  warning  to  beware  of  entangling  foreign  alli- 
ances. This  is  the  warning  that  has  dominated  our  policy  for 
the  century  that  has  been  the  century  of  the  childhood  of  our 


359114 


nation.  Born,  as  the  nation  was,  in  a  time  of  suffering  and 
struggle,  the  war  of  1812  was,  as  it  were,  a  parental  difficulty  : 
a  struggle  between  the  parent  and  the  child  that  had  already 
passed  beyond  its  control.  The  Mexican  War  was  an  inci- 
dent of  national  growth  and  stood  for  the  attainment  of  that 
territorial  stature  which  was  indispensable  to  symmetrical 
national  development.  Finally,  the  Civil  War  came  upon  us 
and  threatened  our  very  life,  as  if  it  were  a  terrible  illness  over- 
taking one  about  to  attain  his  full  maturity.  To-day  we 
find  our  nation  full  grown,  and  there  are  signs  that  we  are 
going  forth,  as  England  did  two  hundred  years  ago,  to  do  our 
work  among  the  nations  of  the  world.  To  beware  of  the 
entanglements  incident  to  foreign  alliances  was  just  such  wise 
counsel  as  one  would  expect  from  the  Father  of  his  Country 
in  speaking  to  the  nation  in  its  childhood.  We  may  choose 
acquaintances  for  our  children  and  keep  them  from  contact 
with  influences  which  seem  to  us  to  threaten  harm.  It  can  no 
longer  be  so  when  they  have  grown  to  man's  estate.  The 
time  must  come  when  our  admonitions  cease  to  bind  them, 
when  it  is  no  longer  possible  or  even  expedient  to  attempt  to 
control  their  free  development.  Nations,  like  individuals,  have 
work  to  do  in  their  day  and  generation.  Like  individuals, 
they  must  make  the  world  better  for  having  lived  in  it.  There 
is  such  a  thing  as  national  character  and  it  must  be  developed 
as  individual  character  is  developed.  In  all  phases  of  life  the 
law  of  growth  is  a  law  of  progress  through  struggle  :  in  the 
physical  world,  the  moral  world,  the  social  world.  No  prog- 
ress can  be  true  progress  unless  it  costs.  There  is,  therefore, 
something  childlike  in  the  simplicity  of  those  who  are  sur- 
prised to  find  that  the  universal  law  still  holds  and  that  the 
step  from  Spanish  barbarism  to  English  civilization  can  be 
taken  only  at  the  price  of  blood.  There  are  those  amongst 
us  who  suppose  that  a  dynasty  can  be  made  to  die  without 
a  struggle — that  Spain  might  peaceably  have  been  persuaded  to 
commit  suicide  ;  that  one  of  the  proudest  and  least  enlightened 
nations  could  have  been  made  to  humble  itself  under  the 
influence  of  pure  reason.  What  is  there  in  our  experience  to 


warrant  such  a  belief?  Children  continue  to  be  born  in  pain. 
Character  is  still  sanctified  only  by  suffering.  Society  is  purified 
only  by  the  operation  of  forces  which,  for  the  nonce,  seem 
destined  to  overthrow  it.  Our  nation  has  suddenly  awakened, 
we  know  not  why  or  how,  to  a  sense  of  her  duty  to  civilization. 
The  occasion  of  the  awakening  may  have  been  the 'sufferings 
of  the  reconcentrados  or  it  may  have  been  the  destruction  of 
the  Maine.  It  is  often  a  sudden  shock  which  brings  us  to  our- 
selves. Certainly  the  awakening  has  come.  It  may  be 
demonstrable  that  to  do  this  duty  will  hurt  our  commerce,  that 
it  will  paralyze  business,  that  it  will  cost  time,  money,  suffer- 
ing. Nevertheless  the  country  has  made  up  its  mind  to  act, 
and  it  is  in  the  light  of  this  determination  that  Spain  may 
read  her  doom.  We  cannot  count  the  cost.  We  have  already 
passed,  perhaps,  through  the  period  of  excitement.  The 
strain  and  weariness  have  begun  to  affect  us.  Could  each  of 
the  secrets  of  Time  have  been  disclosed  to  us  in  advance 
probably  the  country  would  have  hung  back  from  the  enter- 
prise upon  which  we  are  now  embarked.  This  is  always  true 
of  great  undertakings.  It  is  well  for  the  world  that  it  is  so. 
It  is  enough  for  us  to  know  that  the  step  has  been  taken  and 
that  the  work  has  been  begun.  Once  begun,  we  shall  carry  it 
through  to  a  glorious  end. 

Not  only  are  we  unable  at  this  time  to  count  the  cost  of 
the  war,  but  we  cannot  foresee  its  consequences.  Certain 
things  we  may  feel  sure  are  predetermined.  Spain  in 
the  end  must  lose  her  colonies.  The  people  of  the  United 
States  will  perceive  within  themselves  the  growth  of  a  new 
national  spirit.  They  will  learn  to  hate  the  cancer-spots  upon 
our  political  system.  They  will  learn  by  experience  that  only 
those  departments  of  the  government  that  are  administered 
upon  a  civil-service  basis  of  merit  can  stand  the  test  of  a  great 
crisis  ;  that  effective  work  cannot  be  done  with  fiat  currency 
or  fiat  military  officials  ;  that  it  takes  more  than  a  mint  mark 
to  make  a  dollar  and  more  than  a  commission  to  make  a 
major-general.  We  shall  find  ourselves  embarked  on  a  new  era 
of  national  life.  We  shall  be  compelled  to  solve  new  problems, 


economic,  diplomatic,  constitutional.  We  can  perceive  already 
what  some  of  them  will  be.  All  of  them  are  full  of  entrancing 
interest.  I  invite  your  attention  for  a  few  minutes  to  one  of 
them — a  problem  of  constitutional  development  How  will  our 
national  Constitution  stand  the  strain  to  which  it  will  be  sub- 
jected by  the  changed  conditions  of  national  existence  ?  Such 
a  question  sounds  strangely  in  our  ears.  We  love  to  think  of 
our  Constitution  as  immortal.  It  has  withstood  the  rude 
shocks  of  its  early  years.  It  has  witnessed,  unmoved,  the  era 
of  foreign  and  domestic  strife.  The  period  of  reconstruction 
left  it  unshaken.  It  has  survived  many  a  great  financial  crisis. 
Compare  its  majestic  stability  with  the  fleeting  life  of  the 
constitutions  of  France.  Our  Constitution  has  stood  unchanged 
throughout  an  era  during  which  the  unwritten  constitution  of 
England  has  been  transformed.  "  How  will  it  stand  the  strain  ?" 
You  reply,  "It  will  never  feel  the  strain.  It  will  stand  unmoved 
and  immovable  as  the  everlasting  hills."  I  trust  that  you  are 
right.  I  believe  that  you  are.  At  the  same  time  I  fancy  that  I 
can  discern  in  our  constitutional  development  tendencies  that  are 
fraught  with  danger  to  the  Republic.  Perhaps  at  such  a  time 
as  this  it  is  permissible  to  substitute  for  frantic  boasts  an  earnest 
and  dispassionate  review  of  the  situation  in  which  we  find 
ourselves. 

Consider  for  a  moment  the  significant  contrast  between 
the  English  constitution  and  our  own.  We  all  know,  in  a  gen- 
eral way,  that  in  England  the  executive  power  is  vested  in  the 
Crown,  the  judicial  power  in  the  courts  of  the  realm,  including 
the  House  of  Lords,  and  the  legislative  power  in  Parliament.  To 
some  of  us  the  conception  is  familiar  that  the  power  of  Parlia- 
ment is  supreme.  Some  of  us,  not  many,  realize  that  while 
the  sovereign  is  by  no  means  a  figure-head,  far  less  constitu- 
tional power  is  vested  in  the  crown  than  in  the  President  of  the 
United  States.  The  real  power  among  our  English  brethren 
is  the  majority  in  the  House  of  Commons,  whose  leader  for 
the  time  being  is  premier.  With  us  the  President  wields  the 
whole  military  and  a  large  share  of  the  civil  power  of  the 
nation.  His  veto  may  control  legislation  and  at  times  it  rests 


with  him  to  determine  whether  we  shall  have  war  or  peace. 
In  dispensing  the  enormous  patronage  which  in  accordance 
with  our  political  system  he  controls,  he  exercises  (as  has  been 
well  said)  "  functions  which  are  more  truly  regal  than  those  of 
an  English  monarch."  "  Elect  such  a  magistrate  for  life,  or 
give  him  a  permanent  hold  on  office,  and  he  may  be  termed 
Mr.  President  but  will  be  every  inch  a  king."  Again,  still 
fewer  realize  that  Parliament  has  power  to  pass  all  laws,  with 
410  other  limit  than  that  set  by  the  reason  and  judgment  of  the 
Lords  and  Commons.  Parliament  may  supersede  the  courts 
of  justice  by  a  commission  acting  under  martial  law  and  may 
"  arrogate  to  itself  the  trial  of  any  cause  that  it  does  not  desire 
to  leave  to  the  ordinary  tribunals."  The  courts  have  no  juris- 
diction to  declare  acts  of  Parliament  unconstitutional.  Why, 
then,  may  it  not  be  said  that  Parliament  is  despotic  ?  In  what 
sense  is  England  under  the  sway  of  a  constitutional  govern- 
ment ?  I  reply  that  for  ages  the  Parliament  has  proceeded 
according  to  rules  and  precedents  which  are  deeply  rooted 
in  the  minds  and  hearts  of  all  Englishmen,  and  there  is  no 
subject  of  the  Queen  who  is  in  danger  of  being  deprived  of 
life  or  liberty  or  property  except  in  accordance  with  that  due 
course  of  law  prescribed  by  Magna  Charta.  In  a  real  sense, 
therefore,  it  may  be  said  that  Parliament  cannot  run  athwart 
the  traditional  liberties  of  Englishmen.  We,  the  people  of 
the  United  States,  on  the  other  hand,  have  embodied  in 
a  written  constitution  the  declaration  of  principles  in 
accordance  with  which  it  has  been  our  will  to 
live.  In  England,  when  a  measure  is  proposed  in 
Parliament,  no  question  of  legislative  power  need  be  con- 
sidered. The  only  inquiry  is :  "Is  the  measure  consistent 
with  principle  and  such  as  the  circumstances  demand  ?"  With 
us  the  question  must  be  :  "  Is  the  measure  expedient  and,  if  it 
is,  is  it  consistent  with  the  provisions  of  our  Constitution  ?"  No 
matter  how  great  the  expediency  of  an  act  may  be,  it  is  of  none 
effect  if  it  transgresses  the  limitations  set  by  our  fundamental 
law.  As  is  well  known,  it  is  the  peculiar  function  of  the 
American  judiciary  to  determine  whether  or  not  an  act  of 


Congress  or  of  a  state  legislature  is  constitutional.    The  exercise 
of  this  vast  power  may  be  regarded  as  essential  to  the  concep- 
tion of  a  written  constitution.    The  supremacy  of  the  judiciary 
over  the  legislature  has  been  our  boast.     It  is  a  feature  of  our 
constitutional  system  which  has  excited  the  admiration  of  for- 
eigners.    Our  Constitution,  as  interpreted  and  developed  by 
the  Supreme  Court  of  the  United  States,  has  proved  to  be  the 
bulwark  of  our  liberty.     By  a  use  of  the  judicial  power  that 
may  well  be  regarded  as  inspired,  Marshall  (after  Washington 
the  greatest  of  Americans)  found  it  possible  to  make  of  us  a 
nation.     By  a  wise  exercise  of  the  same  power,  Miller  and 
Bradley,  worthy  successors  of  the  great  Chief  Justice,  have 
removed  the  barriers  interposed  by  states  to  check  the  even 
flow  of  national  commerce.     Perhaps  I  cannot  do  better  than 
describe  this  feature  of  our  American  system   in    the   lan- 
guage of  Mr.  Justice  Harlan  in  a  recent  case  :  "  The  duty 
rests  upon  all  courts,  Federal  and  State,  when  their  jurisdic- 
tion is  properly  invoked,  to  see  to  it  that  no  right  secured  by 
the  supreme  law  of  the  land  is  impaired  or  destroyed  by  legis- 
lation.    This  function  and  duty  of  the  judiciary  distinguishes 
the  American  system  from  all  other  systems  of  government. 
The  perpetuity  of  our  institutions   and  the  liberty  which  is 
enjoyed  under  them  depend,  in  no  small    degree,  upon  the 
power  given  the  judiciary  to  declare  null  and  void  all  legisla- 
tion that  is  clearly  repugnant  to  the  supreme  law  of  the  land."" 
But  look  at  it,  my  friends.     Think  for  a  minute  of  the  tremen- 
dous possibilities  of  evil  which  lurk  in  this  vast  power.     As 
each  decision  is  rendered  on  a  constitutional  point  the  decision 
passes  into  the  Constitution,  and  becomes  a  part  of  it.     We 
expect  of  the  Supreme  Court  the  same  stability  of  decision 
that  we  expect  in  the  case  of  the  Constitution  itself.     If  the 
Court   declares    an    act    unconstitutional    we    should    think 
it  a  sign  of  weakness  if  the  declaration  were  not  to  endure 
for   all    time.     Yet   the   question  may  relate  to  some  great 
power    of    government    which    the   nation   has    undertaken 
to    wield.     Take,    for   example,    the    legislation    by   which 
Congress,  after  the  Civil  War,  sought  to   make  greenbacks 

8 


legal  tender  for  payment  of  debts.     An  enormous  responsi- 
bility rested   on   the  Supreme  Court  of  the   United   States. 
To    declare  the  measure  unconstitutional  would  hamper  the 
nation  forever  and  would  leave  it  powerless  to  exercise  one 
of  the  great  attributes  of  sovereignty.    Nevertheless,  the  Court 
had  the  courage  of  conviction  and  declared,  by  a  majority 
vote,  that  to  make  paper  dollars  a  legal  tender  was  unconsti- 
tutional.    But  mark  that  the  decision  laid  a  constitutional  pro- 
hibition upon  the  exercise  of  the  national  will.     The  spectacle 
was  presented  of  a  sovereign  people  checked  in  the  accomplish- 
ment of  its  purpose  by  an  agency  of  its  own  creation.     The 
result  was  inevitable.    The  legal  tender  acts  were  reconsidered 
and  their  validity  was  affirmed  by  a  divided  court.     Observe 
that  I  am  not  discussing  the  merits  of  the  question,  either  as  a 
point  of  constitutional  law  or  of  finance.     I  am  merely  calling 
your  attention  to  the  way  in  which,  at  a  critical  period  of  the 
nation's  history,  it  was  found  impossible  to  sustain  an  exercise 
of  the  judicial    power  in    opposition  to  the  will  of  a   great 
majority.     Take  again  such  an  important  question  of  national 
policy  as  the  Income  Tax.     A  majority  in  Congress  decided 
in  favor  of  a  form  of  taxation  which  the  experience  of  sister 
countries  justifies   us   in  adopting.     The  Supreme  Court  was 
called  upon  to  determine  the  validity  of  the  act  and  the  decision, 
subject  to  certain  limitations,  was  in  favor  of  its  constitutionality. 
The  Court  was  divided,  however,  and  this  time  the  public  senti- 
ment, which  charges  the  atmosphere  breathed  even  by  the  great- 
est and  purest  judges  in  the  world,  was  adverse  to  the  law,  and  a 
reconsideration  of  the  decision  resulted  in  a  declaration  that  the 
law  as  a  whole  was  unconstitutional.  This  decision  is  more  dan- 
gerous than  the  decision  in  the  Legal  Tender  Cases.     There  it 
was  ultimately  decided  that  the  nation  might  wield  a  sovereign 
power.     Here  it  is  made   to    appear  that  the  nation  stands 
stripped  of  a  power — or  is  at  least  hopelessly  hampered  in  the 
exercise  of  a  power — which  may  become  essential  in  view  of  the 
enterprise  on  which*  we  are  embarked.     Before  the  present  war 
has  become  a  thing  of  the  past,  the  Supreme  Court  may  find  it 
necessary  to  overrule  itself  or  else  take  refuge  in  an  attempt  to 


draw  a  distinction,  economic  rather  than  constitutional,  between 
the  act  which  it  has  already  condemned  and  another  tax  law 
of  the  same  kind  which  must  sooner  or  later  come  before  it. 
Again  observe  that  I  am  not  discussing  the  merits  of  the 
question,  although  I  am  of  the  opinion  that  an  income  tax  is  a 
most  desirable  form  of  taxation  and  that  the  decision  of  the 
Supreme  Court  was  erroneous.  The  point  is  that  the  Court 
has  construed  the  Constitution  as  declaring  that  the  nation  may 
not  exercise  a  power  which  may  yet  be  found  indispensable. 
If  the  Court  is  wrong,  the  correction  of  the  error  will  have 
unfortunate  results.  If  the  Court  is  right,  the  Constitution  is  at 
fault  and  an  amendment  to  it,  except  in  the  face  of  some 
extraordinary  emergency,  is  under  our  system  a  practical 
impossibility. 

Turn  to  a  different  field.  Consider  for  a  moment  the 
recent  decision  in  Smyth  vs.  Ames,  better  known  as  the 
Nebraska  Freight  Rate  Case.  Nebraska  had  passed  an  act 
regulating  the  rates  to  be  charged  by  carriers  for  the  transpor- 
tation of  property  and  persons  within  the  State.  The  Court, 
adhering  to  the  view  that  the  reasonableness  of  a  rate  is  a  judi- 
cial question,  decides  that  the  reasonableness  of  such  regula- 
tions depends  upon  whether  they  give  a  fair  return  to  the  rail- 
way companies  inside  the  state  and  must  be  determined  with- 
out reference  to  business  of  an  interstate  character.  A  railway 
company  cannot  be  compelled  to  do  Nebraska  business  at 
unprofitable  figures  on  the  ground  that  its  lines  in  another 
state  are  so  profitable  that  the  company  as  a  whole  will  make 
money.  A  railway  expert  has  pointed  out,  since  the  decision, 
that  in  thirty-eight  States  of  the  Union  governmental  restric- 
tions would  be  unconstitutional  under  existing  conditions.  In 
other  words,  the  legislatures  in  all  but  eight  of  our  states 
now  find  themselves  unable  to  exercise  a  governmental  power 
to  which  carriers  at  the  common  law  have  been  subject  from 
time  immemorial.  It  is  surely  a  significant  thing  that  upon  a 
court  of  justice  has  been  thrust  the  decision  of  three  great 
problems  which  are  in  their  nature  problems  of  currency,  of 
finance  and  of  commercial  control.  It  is  also  significant  that 


10 


while  a  generation  ago  the  decision  of  a  doubtful  question  fell, 
under  the  pressure  of  the  moment,  on  the  side  of  the  consti- 
tutionality of  the  measure  before  the  Court,  the  decision  of  the 
problems  of  to-day  is  a  decision  that  the  acts  in  question  are 
unconstitutional.  An  examination  of  the  decisions  of  federal 
and  state  courts  shows  an  increasing  number  of  cases  in  which 
questions  of  constitutionality  are  discussed  and  an  increasing 
number  of  decisions  to  the  effect  that  acts  of  legislature  are 
unconstitutional.'  Our  constitutional  law  is  fast  taking  on  the 
aspect  of  a  general  system  of  restriction  and  prohibition  as 
respects  the  exercise  of  the  legislative  will.  This  is  an  indica- 
tion that  our  constitutional  law  is  in  danger  of  growing  more 
and  more  rigid  while  the  English  Constitution  retains  its 
flexibility.  Our  judges  are  broadening  their  jurisdiction. 
They  are  using  their  power  more  and  more.  The  result  is  an 
increase  in  the  measure  of  the  responsibility  of  the  courts  and 
a  consequent  diminution  in  the  measure  of  the  responsibility 
of  the  legislatures.  The  outcome  is  what  might  have  been 
anticipated.  Close  observers  of  the  work  done  by  our 
legislators,  both  in  Congress  and  in  the  legislatures  of  the 
of  the  states,  report  an  increasing  tendency  towards  the 
passage  of  ill-considered  and  crude  legislation  and  they  note 
the  half  apologetic  remark  that  "If  the  act  is  unconstitutional 
the  courts  will  correct  it."  When  an  act  passed  under  these 
circumstances  comes  before  the  courts  it  is  apt  to  be  so 
imperfect  in  its  structure  and  so  full  of  possibilities  of  evil, 
that  the  bench  and  the  bar  are  eager  to  search  the  four 
corners  of  the  Constitution,  and  even  to  look  beyond  them, 
in  a  determined  effort  to  protect  the  people  from  the  conse- 
quences of  unwise  legislative  action.  The  greater  the 
responsibility  accepted  by  the  courts  the  more  unworthy  of  con- 
fidence our  legislators  become.  They  no  longer  feel  them- 
selves to  be  the  ultimate  custodians  of  the  liberties  of  the 
people.  They  assume  that  the  declaration  of  the  unconstitu- 
tionality  of  an  act  redresses  all  wrongs  and  makes  dangerous 
consequences  impossible.  That  such  a  declaration  by  a  court 
is  a  declaration  which  is  of  present  advantage  to  the  community 

ii 


no  one  can  deny.  We  are  apt  to  forget,  however,  that  every 
such  decision  becomes  a  part  of  our  constitutional  law,  and 
that  while  it  is  a  means  of  averting  a  present  evil  it  may  prove 
itself  a  source  of  serious  trouble  in  the  future.  It  may  be  a 
good  thing  to  protect  those  who  control  great  municipal  fran- 
chises from  unconscionable  legislation  by  state  legislatures,  by 
municipal  councils  and  by  boards  of  aldermen.  It  may  be  a 
very  serious  thing  to  find  ourselves  hampered  by  a  long  line 
of  decisions  rendered  to  vindicate  such  rights  when  the  time 
comes  for  our  municipalities  to  follow  the  example  of  the 
municipalities  of  the  old  world  and  place  in  the  hands  of  the 
people  the  control  and  exercise  of  these  protected  franchises. 
It  may  be  a  good  thing  to  kill  an  ill-conceived  and  slovenly 
alien  tax  bill  or  direct  inheritance  law.  It  may  be  a  very 
dangerous  thing  to  strip  the  state  of  the  power  to  enact 
properly  drafted  laws  of  this  character.  When  the  legisla- 
ture of  Pennsylvania  passed  an  act  relating  to  admissions 
to  the  bar  which  was  so  ill-considered  that  a  would-be 
attorney  threatened  to  intrude  himself  upon  a  court  before 
which  he  was  not  qualified  to  practice,  the  Supreme  Court  did 
the  community  a  service  in  frustrating  his  reprehensible 
attempt.  It  is  unfortunate,  however,  that  the  Court  found  it 
necessary  to  make  a  general  declaration  that  acts  regulating 
the  admission  of  attorneys  are  unconstitutional  usurpations  of 
the  rights  of  the  judiciary,  for  such  a  declaration,  if  adhered  to, 
will  make  it  impossible  for  Pennsylvania  to  accomplish  the 
salutary  educational  reforms  which  have  been  set  on  foot  in  some 
other  states.  In  such  cases  as  these  the  courts  break  the  force 
of  the  blow  which  our  own  representatives  level  at  us,  and  as  we 
seldom  feel  the  blow's  full  force  we  do  not  rise  to  that  pitch  of 
indignation  which  now  and  then  moves  a  community  to  turn 
away  unworthy  representatives  from  its  service  and  substitute 
legislators  more  faithful  to  their  trust. 

Another  result  of  the  tendency  which  I  have  been  con- 
sidering has  been  the  growth  of  the  sentiment  that  a  consti- 
tutional provision  is  a  panacea  for  all  ills.  Because  our  legis- 
latures abused  their  powers,  it  was  assumed  in  many  quarters 


12 


that  special  legislation  should  be  made  unconstitutional. 
Accordingly,  when  in  Pennsylvania  we  framed  our  Constitu- 
tion of  1874,  we  inserted  a  general  prohibition  against  local 
and  special  legislation.  When  we  found  that  the  legislature 
could  not  do  its  work  in  the  face  of  such  a  prohibition  it 
became  necessary  to  resort  to  the  device  of  arranging  the 
objects  of  legislation  into  classes  in  order  to  legislate  generally 
for  each  special  class.  We  are  now  struggling  to  place  some 
limitation  upon  the  right  to  subdivide  into  classes,  but  the 
struggle  will  doubtless  end  in  the  nullification  of  the  artificial 
constitutional  restriction.  The  Pennsylvania  Constitution  of 
1874  contains  another  instance  of  the  tendency  to  crystallize 
contemporary  economic  conceptions  by  making  them  part  of 
the  fundamental  law.  I  refer  to  the  prohibition  of  consolida- 
tion as  between  two  parallel  and  competing  railroad  lines.  It 
needs  but  little  reflection  to  satisfy  one  that  it  is  a  shortsighted 
policy  to  commit  a  great  and  growing  community  to  the 
declaration  that  cut-throat  competition  between  parallel  lines 
of  railroad  is  always  and  under  all  circumstances  a  good  thing 
for  the  public. 

What  does  all  this  mean  ?  It  means  that  those,  on  or  off  the 
bench,  who  have  been  influential  in  moulding  public  opinion, 
have  hitherto  failed  to  grasp  the  full  significance  of  a  great 
national  development  and  growth,  together  with  the  accom- 
panying changes  in  social  and  economic  conditions.  We  have, 
as  a  nation,  supposed  that  present  conditions  are  eternal ;  that 
existing  economic  conceptions  are  unchangeable,  and  thaT  by 
crystallizing  them  under  the  protection  of  a  constitution  we  can 
check  all  onslaught  upon  them.  Fatal  mistake  !  What  is  a 
constitution  that  it  should  be  so  interpreted  as  to  fetter  a 
nation's  growth  ?  Suppose  all  the  people  say  "  We  will  have 
an  income  tax,  and  have  it  at  once."  It  is  like  the  legal-tender 
question.  The  constitutional  restraint  imposed  by  judicial 
decision  would  quickly  melt  away.  If  not  all  the  people,  but 
a  great  majority  were  to  raise  this  cry,  the  effect  ultimately 
would  be  the  same.  The  Constitution  is  as  nothing  when  it 
ceases  to  reflect  the  nation's  will.  Do  we  delude  ourselves  by 

13 


supposing  that  this  nation  is  to  be  held  back  from  territorial 
acquisition  by  the  failure  of  our  Constitution  to  make  express 
provision  for  colonial  government  ?  Do  we  propose  to  meet 
the  single-tax  advocate  by  telling  him  that  even  if  he  convinces 
the  nation,  the  constitutional  difficulties  in  his  way  are  insuper- 
able ?  Do  we  fondly  dream  that  we  are  giving  a  conclusive 
answer  to  the  socialist  when  we  tell  him  that  our  Constitution 
does  not  permit  an  acceptance  of  his  theories  ?  Fatal  miscon- 
ception of  a  constitution  !  We  must  meet  each  adversary  in 
the  open  and  unhorse  him  in  a  fair  fight — a  fight  fought  in 
defence  of  the  system  for  which  the  Constitution  stands.  We 
must  not  take  refuge  behind  the  Constitution  for  the  sake  of 
avoiding  the  fight.  The  Constitution  needs  our  protection. 
Its  function  is  not,  primarily,  to  protect  us.  It  follows  that  we 
must  not  incorporate  into  the  constitution  of  nation  or  state, 
either  by  direct  enactment  or  by  judicial  decision,  principles  of 
restraint  and  restriction  which  will  precipitate  conflicts  between 
constitutional  law  and  inevitable  national  development.  If  we 
read  the  signs  of  the  times  they  point  us  to  the  coming  of  new 
things  under  the  sun — things  new  for  this  nation  but  familiar 
to  every  student  of  national  evolution.  The  nation  has  become 
great  and  strong.  It  has  reached  maturity.  It  must  exert  its 
full  influence  among  the  nations  of  the  world.  Yes  !  Nations 
of  the  world.  Who  are  we  that  we  should  longer  attempt  to 
maintain  an  imaginary  line  between  so-called  Eastern  and 
Western  Hemispheres  ?  Is  it  not  our  glorious  privilege,  as  we 
penetrate  further  into  the  secrets  of  the  universe,  to  triumph 
over  the  limitations  of  space  and  time,  causing  the  ends 
of  the  world  to  meet  and  time  past  and  time  future  to 
merge  in  time  present  ?  I  believe  that  there  was  once  a  North 
and  a  South  in  this  country,  with  a  line  somewhere  between 
them.  The  line  has  vanished.  Some  would  tell  us  of  an 
East  and  a  West ;  but  the  thing  is  clearly  impossible.  This  is 
a  nation,  instinct  with  life — a  people  with  a  will  to  be  one. 
In  this  we  may  find  the  strength  of  our  Constitution.  Let  us 
beware  that  we  do  not  so  develop  it  as  to  bring  it  athwart  the 
stream  of  national  progress. 

14 


You  say  to  me,  "  This  is  all  very  well,  but  while  you 
have  pointed  out  many  possible  dangers,  you  have  made  no 
practical  suggestions  in  regard  to  the  means  of  guarding 
against  them."  My  only  reply  can  be  that  the  nature  of  the 
case  is  such  that  the  recognition  of  the  danger  is  itself  the 
most  effective  precaution.  If  educated  people  who,  like  your- 
selves, are  in  a  position  to  influence  public  opinion,  will  lay 
firm  hold  upon  the  conception  of  national  evolution  and 
the  futility  of  multiplying  constitutional  restrictions  upon 
the  exercise  of  powers  characteristic  of  sovereignty,  they 
will  be  doing  to  their  country  a  service  of  which  it 
stands  in  great  need.  We  must  resolutely  oppose  the  views 
of  the  many  loyal  citizens  who  conceive  of  social  and  economic 
conditions  as  static,  who  seek  to  solve  all  problems  by  the 
waning  light  of  that  political  economy  which  was  in  the  ascend- 
ant at  our  nation's  birth.  We  must  set  ourselves  against  the 
position  of  those  who  ascribe  such  inevitable  issues  as  the 
present  war  to  the  plots  and  machinations  of  corrupt  politicians. 
Such  people  so  little  appreciate  the  resistless  momentum  of  a 
nation  that  has  been  aroused  to  action  that  they  imagine  it  to 
rest  in  the  power  of  individuals  to  avert  a  coming  war,  and 
they  even  criticize  the  President  in  the  present  crisis  for  not 
having  arrested  the  headlong  rush  of  waters  to  the  sea.  They 
fail  to  perceive  that  the  so-called  "  concessions "  made  by 
Spain  at  the  eleventh  hour  were  wrung  from  her  only  by  her 
realization  that  the  people  of  the  United  States  were  at  last 
awake — that  they  had  risen  to  the  height  of  a  determination 
to  act — and  were  descending  with  resistless  might  to  the 
destruction  of  her  barbarous  and  despotic  sway.  It  was  the 
sight  of  this  national  rising  and  impending  descent  that  caused 
Spain  to  offer  concessions ;  and  the  fact  that  the  descent  had 
already  begun  made  the  concessions  worthless  as  having 
come  too  late.  Withhold  a  message  ?  Modify  a  recommen- 
dation? Advise  the  nation  to  pause?  As  well  might  our 
friends  beseech  the  smith  to  stay  the  ponderous  hammer  in  its 
decent  upon  the  glowing  metal,  as  to  attempt  to  avert  the 
breaking  of  a  storm  that  has  been  gathering  for  more  than 


half  a  century !  Fellow  citizens,  we  must  see  the  present  in 
relation  to  the  past  if  we  would  scan  the  future.  We  must 
accustom  our  eyes  to  the  onward  movement  of  institutions 
and  national  conditions.  We  must  realize  that  we  cannot  keep 
our  dear  country  always  in  its  childhood  and  within  the  realms 
of  quiet  retirement  from  the  world.  It  was  a  sad  day  for 
^Ethra  when  the  young  Theseus  grew  strong  enough  to  move 
the  stone  beneath  which  his  father's  sword  lay  buried  and 
seized  that  sword  in  a  sudden  impulse  to  do  such  deeds  as  had 
made  his  father  renowned.  A  sad  day  and  yet  a  happy  day  ; 
for  the  mother  knew  that  a  selfish  life  is  a  wasted  life  and  that 
a  man  who  does  not  impress  himself  upon  his  day  and  genera- 
tion misses  the  mark  that  is  set  for  his  attaining.  Let  me  say 
again  that  what  is  true  of  individuals  is  true  of  nations.  If 
we  love  our  country,  if  we  believe  in  our  institutions  and  our 
civilization,  we  cannot  but  rejoice  that  an  opportunity  has  come 
to  shed  our  light  abroad.  This  has  been  the  mission  of  Eng- 
land, our  Mother  Country.  It  may  well  be  our  destiny  to 
carry  on  the  work  of  subjecting  the  world  to  the  sway  of 
Anglo-Saxon  civilization  ;  even  as  the  young  Greek  took  his 
father's  sandals  and  his  father's  sword  and  caught  something 
of  his  father's  inspiration.  We  talk  of  an  Anglo-Saxon  alli- 
ance, as  if  that  were  a  matter  of  contract-making.  With  the 
same  blood  in  our  veins — with  the  same  charter  of  sacred 
liberties — with  a  common  instinct  for  impressing  our  institu- 
tions upon  other  peoples — such  an  alliance  is  ours  already  ;  the 
compact  is  registered  in  our  hearts. 

If  I  have  suggested  any  thoughts  to  you  to-day,  let  this 
be  one  of  them — that  the  world  will  be  better  when  this  war 
shall  have  been  fought.  It  will  be  the  glorious  privilege  of 
this  nation  to  have  inaugurated  a  new  era  of  human  progress. 
This  is  a  matchless  task  ;  but  to  do  our  work  thoroughly  and 
well  we  must  do  it  with  all  our  might.  Our  nation  in  this 
crisis  and  in  every  crisis  of  the  future  must  needs  be  armed 
with  all  the  great  powers  of  sovereignty.  Our  courts  must, 
therefore,  curb  their  newly  developed  tendency  to  fetter  gov- 
ernmental action  by  constitutional  restraints. 

16 


• 


Oayford  Bros. 

Makers 
Syracuse.  N.  Y. 


4- 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


r 


